SPECIAL EDUCATION
LITIGATION AVOIDANCE
Melinda B. Kaufmann, Esquire
Assistant Corporation Counsel
City of Hartford
550 Main Street
Hartford, CT 06103
(860) 757-9700
[email protected]
STATUTORY AND REGULATORY AUTHORITIES
– Federal Authorities
•
Individuals With Disabilities Education Act
(IDEA), 20 U.S. C. § 1400 et al. Regulations
are located at 34 C.F.R. Part 300 and 303.
– Connecticut and other states that elect to receive funds
under Part B of the IDEA must provide a “free
appropriate public education” to eligible children with
disabilities between the ages of 3 and 21 in accordance
with the federal IDEA statutes and regulations. It
further provides for early intervention services for
infants and toddler.
– State regulations may be more inclusive than the
federal regulations, but may not be less inclusive.
•
Section 504 of the Rehabilitation Act of 1973
(Section 504); 29 U.S.C. 794, as amended.
Regulations are located at 45 C.F.R. Part 104.
– This statute prohibits discrimination against an
“otherwise handicapped person” by any recipient of
federal funds, including the state Department of
Education, public school districts and intermediate
units.
• The Americans With Disabilities Act (ADA), 42
U.S.C. §§ 12131-12165 (1994). Regulations are
located at 28 C.F.R. 35-101-190.
– Title II of the ADA, in conjunction with Section 504,
governs the accessibility of public schools in terms of
facilities and services. Because the requirements of the
two laws are almost identical, as they relate to the
educational needs of school-age students, the ADA will
not be discussed separately in these materials.
– State Authority
•
Connecticut General Statutes §10-76
– Connecticut State Regulations
•
Other Connecticut Authority
– Hearing Officer decisions
– Opinions from the State Department of Education
CHILD FIND
– Who is eligible for special education
services under the IDEA?
•
A child with a disability (ages 3 to 21) who has a
physical, mental or emotional impairment and
who, by reason thereof, needs special education
and related services. 20 U.S.C. § 1401(3).
• Specifically includes: a child who has
mental retardation, a hearing impairment
(including deafness), a speech or
language impairment, a visual impairment
(including blindness), a serious emotional
disturbance, an orthopedic impairment,
autism, traumatic brain injury, other health
impairment, specific learning disability,
deaf-blindness, or multiple disability, who,
by reason thereof, needs special
education and related services.
•
A child aged 3 through 9, at the
discretion of the State and local
education agency, who is experiencing
developmental delays, as defined by the
State, in the areas of physical, cognitive,
communication, social, emotional or
adaptive development and who, by
reason thereof, needs specially designed
instruction and related services.
20 U.S.C. § 1401(3).
•
In Connecticut, a child is eligible for
special education services through the
end of the year in which the child turns
21. Because the school year is defined
as commencing on July 1, a student who
turns 21 on July 1 or later is eligible for
services through the entire school year.
• Connecticut also defines a student who is
pregnant as being eligible for special
education and related services. Ct. St.
Reg. §10-76d-2(l)
District’s Duty to Identity Eligible Children
•
IDEA
– School districts have an affirmative duty to
locate and identify children in need of
special education services. 20 U.S.C.
§ 1412(3)(A).
•
Includes the duty to locate children who do not
attend public schools.
•
Section 504
– Requires all federal recipients to notify
participants that they do not discriminate on
the basis of disability. 34 C.F.R. § 104.8(a).
– Each recipient must undertake the
identification and location of every qualified
person with disabilities in the entity’s
jurisdiction who is not receiving a public
education and must notify the person’s
parent/guardian of the duty to provide a free
appropriate education.
• Ct. St. Reg. 10-76d-7 mandates prompt
referral to a PPT of all children who have
been suspended repeatedly or whose
behavior, attendance or progress in school
is considered unsatisfactory or at a
marginal level of acceptance.
The evaluation process
•
Informed parental consent must be obtained prior to
conducting an initial evaluation or re-evaluation. 20
U.S.C. § 1414(a)(1)(D); 20 U.S.C. § 1414(c)(3); 34
C.F.R. §300.300.
–
•
Informed consent for a re-evaluation may not need to be
provided if the local educational agency can show that it took
reasonable measures to obtain consent and the parents failed
to respond. 20 U.S.C. § 1414(c)(3).
Who may request an evaluation
–
–
Parent or school personnel
Under state law, referrals for special education may also be
made by a physician, clinic or social worker.
Ct. St. Reg. 10-76d-7.
•
Timeline for initial evaluation
–
IDEA provides 60 calendar days of receiving
parental consent for the evaluation 34 C.F.R.
§300.301(c)
–
Timeline does not apply if parent repeatedly fails or
refuses to produce the child
–
State law provides that evaluation and program
implementation must be conducted within 45 school
days of the referral or notice. Ct. St. Reg. 10-76d13.
•
Reevaluation 34 C.F.R. §300.303
–
May occur whenever parent or school requests it
–
Unless both sides agree, may not be required to
evaluate more than one time in a year
–
Under the IDEA, re-evaluations must be conducted
whenever conditions warrant it, but no less than
once every three years, unless both sides agree it is
not necessary. 34 C.F.R. §300.303(b)(2).
•
Parent’s refusal to permit evaluation
– For initial consent for evaluation only, the
District has a right to request due process to
pursue the initial evaluation. 34 C.F.R.
§300.300(a)(3)(i). The District is not
considered to have violated child find if it
does not do so.
•
Independent Educational Evaluations
–
Parents have a right to obtain an independent
educational evaluation at public expense if they
disagree with an evaluation done by the school.
–
The school may initiate a due process hearing to
show the school's evaluation is appropriate.
–
If the school evaluation is found to be appropriate,
the parents may still present the private evaluation,
but at their own expense.
THE IEP PROCESS
The Determination of Eligibility
•
What must be done
– The District has an obligation to explore
every area of suspected disability.
– A variety of assessment tools must be used
to gather information, including information
from the parents. 34 C.F.R. §§ 300.304,
300.305.
•
No single test or procedure should be used as
the sole criterion to determine whether the child
is a child with a disability.
• The team must determine:
– Whether the child is a child with a disability (or
continues to have a disability if this is a
reevaluation);
– The present levels of performance;
– The present educational needs of the child;
– Whether the child needs (or continues to
need) special education and related services;
– What modifications does the child need to
participate in the special education, related
services or general curriculum?
The IEP
• Parental notification of PPT meeting must
be made at least 5 days prior to the
meeting
• The District must notify parents five days
before proposing to, or refusing to, initiate
or change the child’s identification,
evaluation or placement.
Ct. St. Reg. 10-76d-8.
• Composition of the IEP Team: 20 U.S.C.
§ 1414(d)(B); 34 C.F.R. §300.321.
– The parents of the child;
– At least one current regular education teacher
of the child;
• If the child is or may be participating in the regular
education environment.
• If the student does not have a regular education
teacher, the team should include a regular
education teacher with whom the child is likely to
be placed for any portion of the day.
–
–
At least one special education teacher;
A representative of the local educational agency
who:
•
•
–
–
–
Is qualified to provide, or supervise, the provision of
special education;
Is knowledgeable about the availability of school
resources.
An individual who can interpret the evaluation
results (this could be the psychologist who
administered the tests);
Any other person with knowledge or special
expertise about the child invited by the parent or the
school;
The student, whenever appropriate; and
– With parental consent, the District must invite
a representative of any participating .agency
that is likely to be responsible for providing or
paying for transitional services.
– Members of the IEP team may be excused if
the parent and district agree in writing.
– NOTE – Connecticut law requires that the
PPT team consist of representatives of the
teaching, administrative and pupil personnel
staff. Ct. St. Reg. §10-76a-1(p).
•
What must be included on the IEP? 20
U.S.C. § 1414(d)(A), 34 C.F.R.
§300.320.
•
•
A statement of the child’s present levels of
education and a statement of how the child’s
disability affects his/her involvement and
progress in the general curriculum.
A statement of measurable annual goals;
• A statement of specially-designed instruction and
related services and supplementary aids and
services to be provided to the child and a
statement of program modifications or supports for
school personnel that is designed to enable the
child to:
– Advance appropriately toward attaining the annual goals;
– To enable the child to be involved in and progress in the
general curriculum;
– To enable the child to participate in extracurricular and
other nonacademic activities.
• Related services including the frequency, duration,
mode (direct or consultative) and grouping
(individual or group) of those services.
•
•
•
•
•
Modifications or supports for school personnel
that will be provided for the child.
An explanation of the extent, if any, to which the
child will not participate with non-disabled
children in the regular classroom.
Any modifications needed in the administration of
State or district-wide assessments of student
achievement.
Beginning not later than the first IEP in effect
when the child turns 16, the IEP must include
transition services
How the child’s progress will be measured and
how this information will be communicated to the
parents.
•
It is very important that all people
working with the child have access to the
IEP and are knowledgeable about what
is in it.
– Includes regular education teacher, special
education teacher, related service providers,
any other service provider who is
responsible for its implementation.
What is a Free Appropriate
Public Education (FAPE)?
•
What does “free” mean?
– At public expense.
– May, with parents’ consent, use public or
private insurance to pay for some or all of
the services provided.
•
What does “appropriate” mean?
– There is no clear cut definition.
– This is what most due process hearings are
about.
•
In some cases, a procedural violation is
enough for a hearing officer to find that the
district did not provide FAPE. The hearing
officer may find this if the procedural violation:
–
–
–
–
it impedes the right of the child to FAPE,
it significantly impeded the parent’s right to
participating in the IEP team process, or
it caused a deprivation of educational benefit. 20
U.S.C. §1415(f)(3)(E).
At least one Connecticut Court found that the district
denied the child FAPE when it failed to ensure the
parent’s attendance at the PPT meeting to plan for
the upcoming school year. Mr. and Mrs. M. v.
Ridgefield Board of Education (D. Conn. 2007).
•
A student's failure to make progress
does not mean the IEP was
inappropriate at the time it was drafted.
– A failure to revise an IEP when a student is
not making progress would be a violation
•
The availability of a better or optimal
program also does not make the IEP
inappropriate.
LEAST
RESTRICTIVE
ENVIRONMENT
•
The IDEA mandates the education of
disabled students in the least restrictive
environment appropriate to meet their
needs. 20 U.S.C. § 1412(a)(5) 34 C.F.R.
§ 300.115.
–
–
–
School Districts are required to provide a continuum
of placements for students with disabilities. 34
C.F.R.§ 300.115.
It also requires that disabled students be educated
with their non-disabled peers to the maximum
extent possible. 20 U.S.C.
§ 1412(a)(5).
Nonacademic and extracurricular services and
activities must also be provided in the least
restrictive environment. 34 C.F.R. § 300.117.
•
P. v. Newington School District, 546 F.3d 111
(2d Cir. 2008) , established a two-part test to
determine whether a placement is the LRE:
–
The court must determine whether education in the
regular classroom, with supplementary aids and
services, can be achieved satisfactorily.
•
•
•
What steps has the school taken to try to include the child
in the regular classroom.
Compare the educational benefits the child would receive
in the regular classroom against the benefits the child
would receive in the segregated classroom.
The negative effect inclusion may have on the other
children in the regular classroom.
– If the court finds that placement outside the
regular classroom is necessary, then the
court must decide whether the school has
mainstreamed the child to the maximum
extent appropriate (i.e. has the school made
efforts to include the child in school
programs with non-disabled children
whenever possible).
DISCIPLINE
•
Special rules for disciplining
eligible students
– The IDEA
•
The IDEA requires that the IEP team shall “in the
case of a child whose behavior impedes his or
her learning or that of others, consider, when
appropriate, strategies, including positive
behavioral interventions, strategies and supports
to address that behavior.” 20 U.S.C.
§ 1414(d)(3)(B)(i).
•
Exclusions of eligible students
– The student may be excluded following the
procedures for regular education students if
the exclusion is not a change in placement.
What is a change in placement?
• Definition under IDEA/law:
– Any exclusion that is longer than 10 consecutive days, 34 C.F.R.
§ 300.530(b)(1).
• additional removals for up to 10 days are allowed if they do not
constitute a pattern, 34 C.F.R. § 300.530(b)(2).
– 34 C.F.R. §300.536 suggests that to determine whether a series
of exclusions is a change in placement, you should consider:
• Whether the behavior for which suspension is being considered is
substantially similar to the conduct that resulted in earlier
suspension;
• The length of each removal ad that total time the student have been
removed;
• The proximity of the removals to each other.;
• After the 10th day of removal, educational
services must be provided.
34 C.F.R. § 300.530(d)(4).
•
•
In order to expel a student for longer than the
above, a manifestation determination must be
made to determine whether the behavior was
the manifestation of the student’s disability, 34
C.F.R. § 300.530(e).
Within 10 school days after the date on which
the decision to take action is made, the IEP
team and other qualified personnel must
convene to make a manifestation
determination.
•
Must find that the behavior was a
manifestation of the disability if:
–
–
•
The conduct in question was caused by, or had a
direct and substantial relationship to the child’s
disability; or
If the conduct in question was the direct result of the
LEA’s failure to implement the IEP.
If the behavior is a manifestation of the
exceptionality, the student cannot be expelled.
–
–
The IEP must be revised to remedy any
deficiencies; and
A Behavior Intervention Plan (“BIP”) must be put in
place (or reviewed if already in place).
•
If behavior is not found to be a manifestation of
the exceptionality, the student may be
expelled, but the District must continue to
provide FAPE.
–
–
The District must insure that the student’s special
education and disciplinary records are transmitted
for consideration to those responsible for making
the final determination regarding the disciplinary
action.
The parents have a right to an expedited due
process hearing if they disagree with the
manifestation determination.
•
The placement of child during pendency of the
challenge is:
–
–
If the child has already been placed in an interim
alternative educational setting and then the parents
challenge the manifestation determination, the child
remains in the interim setting pending the decision
of the hearing officer or the expiration of the time
period that the child has been assigned to the
placement;
A student who does not qualify for 45-day
placement under the drugs or weapons criteria or
pursuant to a hearing officer decision stays put in
current placement during the appeal.
•
Weapons, drugs, infliction of serious bodily
injury - the exception, 20 U.S.C. § 1415(k)
–
The school may unilaterally change the placement
of a student for up to 45 school days if the student
carries a weapon to school or a school function
and/or knowingly possesses or uses illegal drugs or
sells or solicits the sale of a controlled substance
while at school, on school premises or at a school
function, the student has inflicted serious bodily
injury upon another person while at school, on
school premises, or at a school function.
•
weapon means “a weapon, device,
instrument, material or substance,
animate or inanimate, that is used for, or
is readily capable of, causing death or
serious bodily injury, except that such
term does not include a pocket knife with
a blade of less than 2 1/2 inches in
length.” 18 U.S.C. § 930; 20 U.S.C.
§ 1415(k).
– illegal drug - illegal drug means controlled
substance unless the controlled substance
is legally possessed or used under
supervision of a licensed health care
professional or used under any other legal
authority. 20 U.S.C. § 1415(k).
– controlled substances are listed at
21 U.S.C. § 812(c) and include:
amphetamine, anabolic steroids, heroin,
marijuana, mescaline, methadone, opium,
peyote, and phenobarbital.
•
Serious bodily injury – means an injury
which involves (A) a substantial risk of
death; (B) extreme physical pain, (C)
protracted and obvious disfigurement; or
(D) protracted loss or impairment of the
function of a bodily member, organ or
mental faculty. 18 USC §1365
•
•
Notification to the parent must be made
not later than the date on which the
decision to take disciplinary action is
made.
Placement for alternative education is set
by the IEP team. 34 C.F.R. §300.531
•
The School can ask a hearing officer to
change the placement if it believes the
child is dangerous to himself or others.
20 U.S.C. § 1415(k)(3).
– The hearing officer can change the
placement for up to 45 school days.
– The District may make successive requests
for 45 day placements.
•
“Should have known” students,
34 C.F.R. § 300.534.
– Students who are not identified as eligible
students under the IDEA may still be
protected by it if the school district “should
have known” about a disability that would
qualify them under the IDEA.
•
The standard under the IDEA:
– The parent expressed concern in writing to
supervisory or administrative personnel of
the appropriate educational agency, or a
teacher of the child, that the child is in need
of special education and related services;
– The parent requested an evaluation of the
child;
– The teacher of the child, or other personnel of
the LEA, expressed specific concern about a
pattern of behavior demonstrated by the child
directly to the director of special education or
to other supervisory personnel.
– The district will not be deemed to have known
if:
• The parent has not allowed an evaluation;
• Has refused services, or
• Has been evaluated and found not to be a child
with a disability.
•
If no deemed knowledge, the District can
discipline the student the same way as a
regular education student. If the parents
request an evaluation of child, it must be
handled in an expedited manner.
– Placement pending the evaluation is the
educational placement determined by the
school authorities.
– Services - if evaluation and information from
the parents establishes that the child is a
child with a disability, the school must
provide special education services in
accordance with IDEA.
•
Referral to Law Enforcement Agency
– The District may report crimes to law
enforcement. 34 C.F.R. § 300.535.
•
The District must make sure that the agency gets
a copy of the special education and disciplinary
records of the child, consistent with FERPA.
•
FERPA requires signed and dated parental
consent to transmit personally identifiable
information from an educational record unless it
falls within one of FERPA's limited exceptions.
•
Services Required in Alternative
Setting
– Must allow the child to continue to
participate in the general curriculum and to
continue to receive those services and
modifications, including those described in
the child’s current IEP, that will enable the
child to meet the goals set out in the IEP
and must include services and modifications
to address behavior.
REMEDIES
•
Compensatory Education
– Hearing officers and the Special Education
Appeals Panel may award compensatory
education where appropriate.
•
NOTE – may also be awarded through the state
complaint procedures
– Case law has indicated that may be required
to provide compensatory education past a
student’s 21st birthday.
•
Reimbursement
– Independent hearing officers can order
reimbursements
– Reimbursements may be for items such as:
•
•
•
Tuition to private school;
Money spent by the parents procuring private
services or tutors; and
Money spent by the parents on private
evaluations.
•
Tuition Reimbursement.
– If the school offers FAPE but the parent opts
to place the child in a private school, the
school is not obligated to pay for the private
placement.
– Reimbursement for private school tuition
paid by parents who have rejected the
district’s proposed placement and who
ultimately prevail on the issue of FAPE is an
appropriate remedy under the IDEA.
Burlington School Committee v. Department
of Education of Massachusetts, 105 S. Ct.
1996 (1985).
– Reimbursement can be for the placement of a child in
a non-approved private school - even one that did not
comply with the IDEA regulations. Florence County
School District 4 v. Shannon Carter, 114 S. Ct. 361
(1993).
– If a parent unilaterally places his/her child at a private
placement in order to get reimbursement, it must be
determined that:
• The program from the District was not designed to give
FAPE, and
• The private placement was appropriate.
• It must have individualized instruction and be designed to
meet the needs of the child.
• It does not have to use an IEP or have state-certified
teachers.
•
Parent responsibility:
– Parents must notify the IEP team at the
most recent IEP team meeting that they are
rejecting placement, what their concerns are
about the proposed program and their intent
to enroll the child at a private school at
public expense OR advise the school of the
same in writing 10 business days in advance
of removing the child from the public school.
– If, prior to the removal, the school properly
requested the opportunity to
evaluate/reevaluate the child, the parent
must make the child available for evaluation.
– If the above is not done, reimbursement for private
school tuition may be denied or reduced.
– Some exceptions to this are:
– The parents are illiterate or cannot write in English;
– Compliance would cause harm to the child;
– The school prevented the parent from providing
notice; or
– The parents did not receive notice of their rights.
•
Attorneys fees
–
–
–
The court may, in its discretion, award reasonable
attorney fees to the parents of a child with a
disability who is the prevailing party. 42 U.S.C. §
1415(1)(3)(B).
Attorney’s fees may not be awarded for any meeting
of the IEP team unless such meeting is convened
as a result of an administrative proceeding or
judicial action.
A school district may be entitled to attorneys fees
for defending against a frivolous due process
request
MOST COMMON IEP
VIOLATIONS
• The key to a defensible IEP is that
anybody picking up the IEP should be able
to understand what is planned for and
expected of the child.
• Not providing the present educational
levels.
– These need to be provided both for academic
and social/emotional levels as appropriate.
• Goals not sufficiently clear
– inappropriate goal: “Johnny will improve in
math”
– Okay goal: “Johnny will master the fifth
grade math skills with 80% accuracy as
measured by teacher created tests.”
– Better goal: “Johnny will do three-digit
division with 80% accuracy as measured by
book tests.”
*Goals should always track the present
education levels provided above.
• IEP identifies needs in the needs section
that are not addressed within the IEP
• Evaluation reports identify needs that are
not addressed in the IEP.
• IEP addresses behavioral issues, but
there is not a behavior plan in place
• The IEP fails to state when and where
services will be provided.
• for each service you should provide
– whether it is individual or group
– duration
– how many times per week
– is it direct or consultative
• Having the IEP already written before the
IEP conference
• Not specifying modifications and
accommodations to be made in the regular
classroom
– failing to train staff adequately to provide the
modifications
– failing to state who will be providing the
modifications
• Improper PPT team composition
• Failing to meet the required timelines
IEP IMPLEMENTATION ISSUES
• Make sure that all staff with responsibility
for the student has access to the student’s
IEP.
– It is suggested that each teacher sign a form
indicating that they have seen and/or received
a copy of the student’s IEP at the beginning of
the year.
• Don’t allow staff to refuse to implement
provisions in the IEP because it doesn’t fit
their teaching style, etc.
• Make sure staff is adequately trained to
implement the IEP.
• Makes sure you are actually delivering any
services and providing any
accommodations/modification that are
provided for in the IEP.
– For example, if the IEP says the student
needs a 1-1 paraprofessional, you have
violated the law if you reassign the student’s
paraprofessional to substitute teach or assist
other students.
General Litigation Avoidance
• Beware of e-mail communications
• Contact Central Office or me if a case is in
due process and you are contacted by the
parent’s or child’s attorney
• Contact your supervisor and me
immediately if you are served with a
subpoena or other court papers
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